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Post A Northern Ireland "Border Poll"? How It Might Work
Created by John Eipper on 05/12/22 3:19 AM

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A Northern Ireland "Border Poll"? How It Might Work (Patrick Mears, -Germany, 05/12/22 3:19 am)

One critical element of the Belfast/Good Friday Agreement that was signed in the city of Belfast in Northern Ireland on April 10, 1998, is the "poll" that may be taken on both sides of the Irish Border that separates Northern Ireland and the Irish Republic. (The popular term "border poll" is not used in the Belfast Agreement; the word "border" is absent in the document.)

As explained below, this mechanism is designed to determine whether the voting population of Northern Ireland desires to "Remain" in the United Kingdom or "Leave" the UK and merge into the Republic of Ireland. However, the Belfast Agreement's provisions concerning the invocation and operation of this border poll are not precisely defined, which could cause problems in the future.

1.  The Relevant Provisions of the Belfast Agreement

Under the heading of "Constitutional Issues," the governments of the United Kingdom and the Republic of Ireland explicitly recognize in Section 1(i) the "legitimacy of whatever choice is freely exercised by a majority of the people of Northern Ireland with regard to its status, whether they continue to support the Union with Great Britain or a sovereign united Ireland." Section 1(ii) continues as follows:

"(The two parties to the Agreement) recognize that it is for the people of the island of Ireland alone, by agreement between the two parts respectively and without external impediment, to exercise their right of self-determination on the basis of consent, freely and concurrently given, North and South, to bring about a united Ireland, if that is their wish, accepting that this right must be achieved and exercised with and subject to the agreement and consent of a majority of the people of Northern Ireland."

Schedule I of Annex A to the Belfast Agreement titled "Polls for the Purpose of Section I" provides that the UK Secretary of State for Northern Ireland "may by order direct the holding of a poll for the purposes of (determining whether Northern Ireland will remain in the UK or join the Republic) on a date specified in the order." This determination shall be made by the Secretary of State "if at any time it appears likely to him that a majority of those voting would express a wish that Northern Ireland should cease to be a part of the United Kingdom and form a part of a United Ireland." This determination, however, may not be made in the event that a prior poll had been taken within seven years "after the holding of a previous poll under this Schedule."

The Belfast Agreement therefore provides a binary choice for qualified voters in the polling on the question of "Remain" or "Leave," and also states that a simple majority vote (50% + 1) will determine the outcome. Nevertheless, there are no provisions in the Belfast Agreement that seek to define under what circumstances would the Secretary of State make a determination as to whether to call such a border poll. The text appears to leave this decision completely within the discretion of the Secretary of State. Some commentators argue that the decision must be made in good faith by the Secretary of State, taking into account public opinion polls and the declarations of Northern Ireland politicians.

There is also a judicial gloss on this provision contained within a 2020 decision by the Northern Ireland rendered in litigation commenced by an individual challenging the above-quoted criteria to be used by the Secretary of State in calling a border poll. The Northern Ireland Court of Appeals described the discretion of the Secretary of State as "unqualified," and that the Belfast Agreement did not specify any matter that should be taken into account or anything that should be disregarded in deciding whether or not to call a border poll. This decision also posits that the calling of such a poll must be based on evidence and not politics and that the Secretary of State's decision must be honest and rigorously impartial.

2.  Possible Voting Outcomes

As noted above, if a border poll is called by the Secretary of State and the voters decide to "Remain," then no subsequent poll may be scheduled for seven years thereafter. If the poll is called and the voters decide to "Leave," then the Republic of Ireland would in the normal course of events, conduct its own poll of its voters to determine if the Republic will honor the wishes of the majority of Northern Ireland voters seeking to join the Republic. This mirror-image border poll would likely also seek the consent of the Republic's voters to certain amendments to the Republic's Constitution in order to accomplish the merging of the two states. One question that would also need to be decided then is the form of such a merger. The choices appear to be either (i) Northern Ireland becomes a part of a unitary state administered from Dublin, or (ii) a devolved government would be established in Northern Ireland with a parliamentary body empowered to enact certain "local" laws and regulations that would apply in Northern Ireland.

The text of the Belfast Agreement is linked here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1034123/The_Belfast_Agreement_An_Agreement_Reached_at_the_Multi-Party_Talks_on_Northern_Ireland.pdf

JE comments:  This poll published a year ago has Northern Ireland's "Remainers" outnumbering the "Leavers" by 44 to 35 percent.  So the 21% of Undecideds make up the crucial difference.  Voters in the South favor unification, but not if the Republic has to pay for it. 

Pat, could you speculate:  would unification hit Dublin hard in the pocketbook, or would the North actually provide an economic boost for the Republic?  After all, Northern Ireland is not East Germany.

https://www.politico.eu/article/poll-ireland-unification-support-costs-brexit/


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  • How Would the Republic Vote on Unification with Northern Ireland? (Patrick Mears, -Germany 05/13/22 5:32 AM)
    With respect to your question, John, about how the Irish in the Republic of Ireland might vote in a border poll today, it is almost impossible to answer. Most of the polls that I have been reading about have been naturally taken in Northern Ireland, for a majority "Leave" vote taken there would trigger a border poll down south.

    An article in the May 8, 2022 edition of the Financial Times titled "Prospect of a united Ireland comes into sharp focus" mentions a recent poll taken in the Republic by a polling organization named "Ireland Thinks" founded by Kevin Cunningham, a lecturer in politics at Technological University Dublin. According to the FT, Cunningham's polling company "found 51% of respondents in the Republic of Ireland, where Sinn Féin is the most popular party, believed that there should be a referendum--and 57% would vote in favor."


    This FT article is well worth reading and may be accessed via this link: https://www.ft.com/content/53592270-98aa-4030-812a-dc019461b8d7 .


    I took the added step of contacting a good friend of mine who was prior to his recent retirement a partner in a large, commercial law firm in Dublin and is a keen and knowledgeable observer of Irish politics. He responded by noting that, although the vote would likely be "yes" for reunification, he believes that a sizable majority of Republic voters would reject the proposal, primarily because they would not welcome the bitterness and strife that would accompany the merging of the two parts of the island. He also remarked as follows:


    "The financial cost on the Republic will be massive but it will be significantly diminished by contributions from London (because London will be so relieved to rid itself of Northern Ireland). Separately, it's probably important to keep the independence of Scotland in mind: Brexit has changed everything. England wants to be rid of the other nations in the United Kingdom, despite mutterings to the contrary."


    JE comments:  A very interesting perspective--that England would prefer to go it alone.  Of course, by "England" we mean a lot of people in England, possibly including the decision makers.  I hope we'll hear some comments on this from our UK colleagues.  Regarding national acronyms, will "UK" go the way of the USSR?


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  • Northern Ireland: Brexit and Shifting Demographics (José Ignacio Soler, Venezuela 05/14/22 3:26 AM)
    The posts on Northern Ireland that Patrick Mears has sent have been very revealing about the possible scenarios and legal aspects. However, it did not seem to me that the possible causes of this change in the political landscape have been pointed out.

    I was talking to a friend of Irish origin, and he pointed out some causes in this context. My friend gave some interesting comments. Possibly Pat could comment.


    Firstly, there are many dissatisfied people in the population due to the way in which the Brexit customs protocols have affected them, making life more expensive and causing inconvenience for the free transit of people and goods.


    In addition, there have been significant demographic changes. Although the Protestant population is still the majority, their numbers have progressively decreased with respect to the Catholics, and the trend may lead to them becoming a minority in a few years.


    At the same time, the popularity and support of the DUP party has fallen sharply, largely due to its support for Brexit, which is highly unpopular among large segments of the population, both Catholic and Protestant. It should be remembered that 56% of the Northern Irish population voted against the United Kingdom leaving the EU and that many of the extraordinary benefits promised by that exit have not been fulfilled--many of which, as I understand it, were pure demagogic lies.


    JE comments:  A random thought, which may or may not be relevant.  How is the DUP (Democratic Unionist Party) pronounced?  Is it D-U-P or read as a word (dupe)?  If the latter, it's unfortunate, both for the way it sounds in English and for its similarity to dupa (arse) in Polish.  The 30,000 or so Poles in the North must find this amusing, to say the least.  Or maybe they're used to such double entendres.  After all, the PiS party is in power back home.

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